Chan Ah Kwong v. Yan Cheuk Lun and Others

HCPI 287/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 287 OF 2005

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BETWEEN

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Before: Mr. Recorder P. Fung, S.C. in Court

Date of Hearing: 22^nd, 23^rd and 24^th July 2009

Date of Handing Down Judgment: 10^th August 2009

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J U D G M E N T

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The Action

1.This is an action by the Plaintiff against the 1^st – 4^th Defendants for damages for personal injuries suffered by him.

2.Originally, there were only three defendants, namely, the 1^st – 3^rd Defendants, when the action was instituted in 2005.  Those three defendants did not give notice of intention to defend.  As a result, the Plaintiff entered Interlocutory Judgment against them on 13^th June 2005 with damages to be assessed.  Subsequently, the Plaintiff joined the 4^th Defendant as a party.

3.The trial took place only as between the Plaintiff and the 4^th Defendant.

The Facts

4.The 4^th Defendant was and is a company providing security service.  I was told by Counsel that it had a security staff of about 1,800 persons.

5.The Plaintiff was first employed by the 4^th Defendant as a security guard in January 1996 at the age of about 35 years.  In May 1997, he was assigned to work as a security guard at an estate by the name of “Illumination Terrace” at Nos. 5 – 7, Tai Hang Road in Causeway Bay, Hong Kong (“the Estate”).  He was subsequently promoted and as at September 2003 he was the security supervisor at the Estate.

6.The Estate is a fairly large development with 2 residential blocks and 4 levels of car parks.  The management of the Estate has been in the hands of a property management company.  The 4^th Defendant has been appointed to provide the security service.  According to the Plaintiff, the security staff on the Estate worked in a team of six for each shift at the material time.  There would be at least one person stationed at each of the two blocks and one person to control the entry and exit of vehicles at the entrance and exit point of the car parks.  Visitors with cars could park the same at the car parks and pay parking fees at the rate of $20 per hour.  The security personnel controlling the car parks would also collect the parking fees.

7.On the level of the entrance to the car parks and in front of the entrance of the lobby to one of the two blocks, Block 2, there was a piece of ground which was designated as temporary carparking spaces for up to 4 vehicles.  The house rule was that no one should park a vehicle at such temporary carparking spaces for more than 30 minutes.  The temporary parking activities would be monitored by the management staff or the security staff.  For anyone who breached the rule by parking his vehicle for over 30 minutes, the security staff would be instructed to impound the vehicle by locking the wheels and the driver would or might have to pay the sum of $320.00 to the management for its release.

8.It is not in dispute that the residents on the Estate were generally decent and polite people, such as lawyers, doctors and retired police officers and that, prior to the incident in question which took place on 27^th September 2003, there had been no incident of violence or even severe argument occuring on the Estate, whether involving disputes over the parking of cars or involving incidents of crime or other matters.  According to the Plaintiff, there were sometimes arguments between the management or security staff on the one hand and taxi drivers in relation to taxis waiting for passengers or lorry drivers who delivered goods to the Estate on the other hand, but nothing serious had ever happened.  Thus, by and large, the Estate had a reasonably peaceful environment.

9.Prior to December 2002, each of the security staff on duty at the Estate was supplied with a beige or brownish – coloured uniform with badges, and an identification card attached to it.  He would also be equipped with a whistle and a 12-inch truncheon made of solid wood which he could attach to his belt.

10.In December 2002, at the request of the Incorporated Owners of the Estate, the uniform of the security staff was changed.  The shirt forming part of the uniform became light grey in colour but the badges and the identification card would still be as prominently displayed as before.  They were further supplied with jackets which would also have the badges and the identification cards prominently displayed.  They were given the option of not wearing the jackets when working outdoors in hot weather. Although on the pleadings and in the opening submission of Mr. Lim, Counsel for the Plaintiff, a lot of emphasis was placed on the effect of the jacket ---- it was submitted that the jacket made the uniform look more like a suit and hence its deterrent effect was diminished, it subsequently became a non-point.  After the Plaintiff had watched the replay of the close-circuit TV film of the incident, he was reminded that at the time of the incident he was actually not wearing his jacket.

11.The other change that was brought about at the request of the Incorporated Owners was that the whistle and the truncheon were withdrawn from the security staff so that they were no longer required to carry the same when on duty.  In submission, Mr. Lim practically said nothing about the whistle.  His main line of attack was based on the withdrawal of the truncheon.  I shall deal with this aspect in greater detail below.

12.I now come to the incident on the evening of 27^th September 2003.  It involved members of the Cheung family who were tenants in Flat C on the 26^th Floor of Block 2.  The 1^st – 3^rd Defendants were brothers in the Cheung family.  They themselves were surnamed Yan but the head of the family was their stepfather, a Mr. Cheung.

13.According to the Plaintiff, at about 8:30 p.m. that evening, he noticed that a vehicle with registration No. KT7737 had been parked at one of the temporary carparking spaces.  He recognised that it belonged to the Cheung family.  About 2 hours later, the Plaintiff was informed that the Claim of the Incorporated Owners had made a complaint about the said vehicle having been parked where it was for a long time.  The Plaintiff therefore contacted the Cheung family through the inter-com to request removal of the vehicle.  After many requests, members of the Cheung family came down and eventually a very heated argument broke out between the 1^st Defendant and the Plaintiff.  The mother of the 1^st – 3^rd Defendants also joined in the argument.  By that time, there had gathered together more than 20 residents to witness the dispute.  As the 1^st Defendant still refused to move the vehicle, the Plaintiff instructed his subordinates, Chan Shui and Chung Ping Yin, to prepare to lock the wheels of the car.  The 2^nd Defendant then appeared and used foul language to scold the Plaintiff.  Confusion then ensued.  The 1^st and 2^nd Defendants together used their chests to press against the Plaintiff to force him to retreat.  They then used their fists to hit the head and body of the Plaintiff many times.  The Plaintiff tried to escape.  The 1^st and 2^nd Defendants then chased him.  The 3^rd Defendant and three other persons also joined in the attack.  They hit him with their fists and also kicked him.  The 2^nd Defendant then took out a 16-inch metal torch from the vehicle in question and hit the Plaintiff with it.  The Plaintiff did not retaliate.  He just squatted and used his hands to protect his own head.

14.All this time, nobody did anything substantial to rescue the Plaintiff.  There was a Mr. Kwan, a resident, who tried to stop the fight but without success.  The Plaintiff’s subordinates, Chan Shui and Chung Ping Yin, shouted words to the effect that people should stop fighting.  Although Chung Ping Yin made some gesture to stop the fight, he certainly did not do anything very substantial to try and ward off the blows directed at the Plaintiff.  There was another security staff, Lee Yuen Kwong, present on the scene, but he also did nothing more than shouting for people to stop.

15.The Plaintiff suffered quite serious injuries because of the attack on him.  Someone had called the police who later arrived.  The attackers were arrested and the Plaintiff was taken to hospital.

16.Chung Ping Yin was called as the only witness for the 4^th Defendant.  His account of what happened did not contradict that given by the Plaintiff as summarised above.

17.Subsequently, on 20^th September 2004, the 1^st and 2^nd Defendants were charged with and pleaded guilty to the offence of assault occasioning actual bodily harm.  They were duly convicted and sentenced in the Eastern Magistracy.  The 3^rd Defendant was also charged but the prosecution offered no evidence against him.  There is no evidence regarding    what happened to the other alleged attackers.

The Case of the Plaintiff

18.The case of the Plaintiff against the 4^th Defendant is pleaded in paragraphs 16, 17 and 17A of the Re-Amended Statement of Claim as follows : -

“16.   It is an implied term of the employment contract between the plaintiff and the 4^th defendant, and/or it is the duty of the 4^th defendant as the plaintiff’s employer : -

(a)   to take all reasonable precautions for the safety of the plaintiff while the plaintiff was engaged upon his work;

(b)   not to expose the plaintiff to a risk of injury or damage of which the 4^th defendant knew or ought to have known;

(c)   to provide suitable safety and protective equipments to the plaintiff for carrying out his work and duties;

(d)   to provide and maintain a safe place of work;

(e)   to provide and maintain a safe system of work;

(f)    to provide to the plaintiff with proper and adequate instructions as to the safety method and procedure for carrying out his work and duties, and in particular to provide self-defence training.

17.   The said incident was caused, or mainly caused, by breach of employment contracted by, and/or negligence of, the 4^th defendant, its servants or agents.

PARTICULARS OF BREACH OF EMPLOYMENT

AND/OR NEGLIGENCE OF THE 4^TH DEFENDANT

(a)   failing to take all reasonable precautions for the safety of the plaintiff while the plaintiff was engaged upon his work;

(b)   exposing the plaintiff to a risk of injury or damage of which the 4^th defendant knew or ought to have known;

(c)   failing to provide suitable safety and protective equipments to the plaintiff for carrying out his work and duties;

(d)   failing to provide and maintain a safe place of work;

(e)   failing to provide and maintain a safe system of work;

(f)    failing to provide to the plaintiff with proper and adequate instructions as to the safety method and procedure for carrying out his work and duties;

(g)   as the other security officers of the 4^th defendant were merely standing to witness the said incident without giving any help/assistance, failing to arrange other staffs at Illumination Terrace to assist and/or protect the plaintiff from being assaulted continuously by the assailants;

(h)   as the other security officers of the 4^th defendant were merely standing to witness the said incident without giving any help/assistance, failing to call the police or other rescuers in time or in sufficient time to prevent the plaintiff from being assaulted continuously by the assailants;

(i)    as the other security officers of the 4^th defendant were merely standing to witness the said incident without giving any help/assistance, failing to stop the assailants from attacking/assaulting the plaintiff;

(j)    as the other security officers of the 4^th defendant were merely standing to witness the said incident without giving any help/assistance, failing to escort the plaintiff to a safe place/shelter against further attacks/assault by the assailants;

(k)   failing to provide any self-defence training; and

(l)    well knowing that the plaintiff would be exposed in his work and duties as security guard to a real risk of being attacked by disgruntled car owners/users, withdrawing from the plaintiff in December 2002, without any substituted protective equipments, the said 12 inch long black truncheon, blowing whistle, armoured-type uniform, police-like cap and belts.

17A.     Further or alternatively, the incident was caused or contributed to by breach of statutory duty by the 4^th Defendant, its servants or agents.

PARTICULARS OF BREACH OF STATUTORY DUTY OF THE 4^TH DEFENDANT

In breach of Section 6(2)(a) of the Occupational Safety and Health Ordinance, Cap. 509, the 4^th Defendant failed to provide or maintain plant and systems of work that were, so far as reasonably practicable, safe and without risks to health, namely, the failure to provide security equipment and training to the Plaintiff and other employees to discharge the duty of locking wheels of cars parked illegally.”

19.I have already touched upon the main line of attack of the Plaintiff in paragraphs 10 and 11 above.  The basic complaint of the Plaintiff is the withdrawal of the truncheon from the security staff on duty on the Estate from December 2002 onwards.

My Findings

20.It is trite that the burden  is on the Plaintiff to prove that the 4^th Defendant had breached the alleged implied terms of the contract of employment as pleaded in paragraph 16 of the Re-Amended Statement of Claim or that it had been negligent as alleged in paragraph 17 thereof or that it had been in breach of its statutory duty as alleged in paragraph 17A thereof.

21.I have come to the conclusion on the evidence that the Plaintiff has failed in discharging such burden.

22.As stated above, the main line of attack of the Plaintiff is the withdrawal of the truncheon.

23.I find that the 4^th Defendant did not commit any breach of the employment contract or its common law duty of care or any statutory duty owed to the Plaintiff by withdrawing the truncheon from the security staff on the Estate.  The evidence is quite clear that there had never been any incident nearly similar to that in question.  The people living on the Estate were all very civilised.  It was by and large a peaceful residential environment on the Estate.  The 4^th Defendant could not reasonably have foreseen that something like the incident in question would take place.

24.Further and more importantly, the Plaintiff did not give any evidence as to how the incident could have been avoided or made less serious if he had been equipped with a truncheon at the time.  I posed the specific question to the Plaintiff as to what he would have done if he did have a truncheon on him at the time.  His response was that he would decline to answer because the question was too difficult.  The Court cannot enter into the realm of speculation.  He has therefore failed to prove that the lack of the truncheon was the cause for the injury, loss and damage he has suffered.

25.A similar question was also put to Chung Pang Yin.  He was quite positive that, even if he had a truncheon on him, he would not have used it because he would have been afraid to provoke the attackers into exerting more or greater violence.

26.In all the circumstances, I am equally unable to draw any conclusion as to what the position might have been if the Plaintiff’s subordinates present at the scene had each been equipped with a truncheon.

27.At one stage, I was quite disturbed by the fact that the subordinates of the Plaintiff who were present did not appear to have done much to go to the rescue of the Plaintiff.  I posed the question to Mr. Lim as to whether it was open to him to argue for vicarious liability of the 4^th Defendant for the relative inaction on the part of its employees, namely, the said subordinates of the Plaintiff.  Mr. Lim’s response was that he was content to rely only on his plea of failure to provide and maintain a safe system of work.

28.In all the circumstances, I do not see how the 4^th Defendant can be held liable for the decisions made by the respective members of its staff at the scene as individuals based on their own assessment of the situation.  After all, we are talking about human beings and not machines.

29.Even if individual members of the security staff had been given sufficient training in self-defence or in the techniques of combat as a team, it still does not mean that the incident which resulted in the injuries, loss and damage suffered by the Plaintiff would not have occurred.

30.All in all, even assuming that the employment contract did include the implied terms pleaded in paragraph 16 of the Re-Amended Statement of Claim, I am of the view that the Plaintiff has failed to prove any of the breaches alleged to have been committed by the 4^th Defendant as pleaded in paragraphs 17 and 17A of the Re-Amended Statement of Claim.

31.In conclusion, much sympathy though I may have for the Plaintiff, I have no alternative but to dismiss his claim against the 4^th Defendant.

32.I make an order nisi that the Plaintiff should pay the costs of his claim against the 4^th Defendant in this action.  I also order that the Plaintiff’s own costs be taxed according to the Legal Aid Regulations.

33.It remains for me to thank Counsel on both sides for their assistance.  I did have concerns about various matters in the course of the trial.  Such concerns were ably and appropriately addressed by both Counsel.  I should add that I was referred to a number of authorities by Counsel on both sides.  Whilst the authorities were helpful in the sense that they enabled me to see how matters were approached by the Courts in other cases, at the end of the day, I had to deal with the present case on the basis of mainly factual rather than legal issues.

Mr Patrick D. Lim, instructed by Messrs. Raymond T.L. Tse & Co., assigned by Director of Legal Aid, for the Plaintiff

Mr Ashok Sakhrani, instructed by Messrs. Deacons, for the 4^th Defendant